IPA Legal Update: IPA v. FAA/Cargo Airline A
 

This just in from a friend:

Last week, IPA representatives met in D.C. with ALPA FedEx representatives. One topic of conversation was the recently filed lawsuit by IPA against the FAA and now against the Cargo Airlines Association. ALPA does not support the litigation, and has published points (see below) outlining their position.

We agree with some, and respectfully disagree with other points made in the communication. I thought it would be helpful for IPA members to have the benefit of an IPA point-by-point response to these topics. Here it is:

ALPA Question: Is filing a lawsuit challenging the FAA's exclusion of cargo carriers from Part 117 which establishes duty limits and rest requirements for flight crewmembers prudent at this time? Has recent information changed your opinion that the legislative route provides the highest likelihood of success?

ALPA Answer: We do not recommend filing such a lawsuit at this time. In addition to what was previously sent, the below are some of the reasons and information:

Applying the standards of review to the facts of this case, the likelihood of success is not strong.

IPA Response: It is true that a Court of Appeals review of an agency action is always an uphill challenge, given the deferential standard of review afforded the agency. The Court will not substitute its safety judgment for that of the FAA.

However, the DC Circuit is particularly known for requiring agencies to follow proper procedures and not permitting agencies to issue final regulations without allowing interested parties a genuine opportunity to comment on decisive factors and information (such as the cost-benefit “analysis” regarding applicability of the final rule to cargo carriers that FAA alludes to, but still has not revealed, and certainly did not provide prior to issuance of the Final Rule.) Despite the deferential standard of review, the DC Circuit has overturned agency decisions and regulations, including FAA actions.

Moreover, there are other anomalies in the FAA decision-making, such as the agency’s never retracted position in the NPRM that the factors that induce and exacerbate fatigue in flightcrews are the same, regardless of whether the operation involves the carriage of passengers or cargo. These substantive findings by FAA were not addressed by the Final Rule.

Based on the flaws in FAA’s analysis and prior decisions of the Court of Appeals, the challenges to the Final Rule’s cargo carve-out are meritorious claims that are similar to claims the Court has accepted in similar past cases. While there is certainly no guarantee of success, the arguments we will raise in the litigation are substantial and have a strong basis in the facts and in the law.

If the litigation is not successful, it will make the efforts to obtain compliance by legislation or voluntary compliance more difficult because the judicial branch of government will have affirmed that the FAA's exclusion of cargo carriers was appropriate.


IPA Response: We strongly disagree. Even if IPA does not win the lawsuit, the Court’s decision would be limited to a finding that the FAA’s process and decision was not legally deficient. The Court would not be endorsing the policy determination made by FAA to exclude cargo operations from the rule.

The legislative effort would not be impeded by challenging the rule any more than it would be by not challenging the rule. Often, Congress expects parties to pursue other means of obtaining relief before asking Congress to implement a legislative solution. With respect to the age 60 issue, Congress was willing to step in but only after it became obvious that the courts were unwilling to reverse the FAA.

As to “voluntary compliance,” the factors that may lead a cargo carrier to voluntarily comply with the rule have nothing to do with whether the rule was unchallenged or sustained upon challenge.

If successful, the court is unlikely to order cargo carriers to be included under the new FT/DT rule. The matter will, in our opinion, be sent back to the FAA. The FAA is likely to restart the rulemaking process and allow notice and comment.

IPA Response: This is correct. We believe that the “cost/benefit” rational that excluded cargo operations from the rule is fundamentally flawed. The industry inflated perceived “costs” of applying the rule to cargo, and, at the same time, minimized “benefits” of applying one level of safety to all airline operations. Any court ordered FAA reconsideration; we believe, will only improve the rule, not delay or weaken it.

If the court sends the matter back to the FAA, the FAA will most likely publish a supplemental NPRM which may take the position that it is excluding cargo carriers and ask for comments.

IPA Response: That is true as a matter of procedure, but understates the impact of a Court decision striking down the cargo carve-out. In articulating the reasons why FAA erred in adopting the cargo carve-out, the Court’s decision will make it more difficult for the FAA to justify a carve-out on remand. While the FAA would technically have the discretion to retain the carve-out, it would have to justify it and provide an opportunity for meaningful analysis and comment by interested parties.

Thus, for instance, on remand, IPA and others would have the opportunity to analyze and comment on the cost benefit analysis FAA produces to justify its proposed approach. In the recent rulemaking process pilot unions did not even see the cost/benefit analysis that was the deciding factor in FAA’s decision to carve out cargo operations from the scope of the Final Rule.

Moreover, we know there are officials within FAA who believe that cargo operations should be covered by the rule—as evidenced by the NPRM’s inclusion of cargo operations, and the fact that FAA made significant changes to the final rule to reduce the impacts on cargo operations (e.g. reducing the minimum rest requirements for “split duty” shifts, which do not apply to passenger operations). On remand, a favorable Court decision would strengthen the position of those FAA officials to argue in favor of eliminating the carve-out.

It is premature to assume that FAA would seek to exclude cargo operations, particularly after having been reversed by the Court. .

Since there will be no statutory deadline (because this would be a court mandated action) a new rulemaking process could result in no rule -- just as has happened in the past.

IPA Response: That is true. It’s also possible that pursuing the “legislative route” could produce the very same result. Pilot unions do not control Congress. Congress could just as easily decide to throw the issue back to the FAA as could the courts. The best way to protect the status quo is to do nothing. Unfortunately, the status quo leaves cargo pilots without the protection of the new rule. Additionally, the status quo, if unchallenged, would set a strong precedent that “one level of safety” does not include cargo operations, and that the lives and families of cargo pilots are of lesser value. IPA is committed to challenging this unacceptable status quo by any and all means possible with or without guarantees of success.

ALPA entering the litigation could cause ATA and others to participate and oppose the entire rule.

IPA Response: If ATA wants to challenge the entire rule, it would have to file its own petition for review. In the current proceeding initiated by IPA, the issues are determined by IPA, and so the cargo carve-out is the only issue in play. ATA did not choose to intervene in the IPA proceeding before the deadline for intervening expired, suggesting that it is not interested in litigating the cargo carve-out. If ATA decides to initiate its own petition for review (for which the deadline has not yet expired) to challenge the entire rule, that decision will be made based on factors relating to the impact of the rule on ATA’s members, not on whether ALPA joins the challenge to the cargo carve-out.

When a matter is in litigation, Congress is extremely reluctant to take legislative action and carriers adopt a wait and see attitude rather than try complying voluntarily. If ALPA files a lawsuit it will interfere with any legislative effort.

IPA Response: Let’s face facts. Winning this fight—from either a court or legislative challenge—is uphill and against the odds. But just because the odds are long, does not, in our opinion, mean that we should not fight and fight by every means at our disposal.

IPA members, joined by our CAPA colleagues, were on Capitol Hill last week meeting with legislative allies kicking off our own legislative campaign seeking to reverse the cargo exclusion. No member of Congress or staffer we met with so much as suggested that the pending lawsuit would make them less likely to support legislation reversing the exclusion. Is it possible that some members will use the lawsuit as an excuse not to support legislation? This could very well happen. However, it is fair to ask whether or not these same legislators would be supporting us in the absence of litigation.

Also, with the power of the cargo lobby arrayed against us, the success of a legislative solution can only come with widespread public knowledge and support of our issue. The lawsuit has garnered significant national press coverage raising public and congressional education on the issue.

Would the cargo carve-out even now be on Congress’ radar in the absence of the intensive press coverage generated by IPA’s lawsuit? This seems doubtful.

As for carrier voluntary compliance, if a cargo carrier were willing to voluntarily comply with the rule, the possibility that it may, at some point, be required to comply with the rule should not logically cause that carrier to delay voluntary compliance.

Litigation may stop the FAA from making some needed technical corrections which FedEx pilots desire.

IPA Response: Technical corrections will not help FedEx pilots unless the rules apply to cargo operations. As of now, the Final Rule does not apply to cargo operations.

The process could take over a year to get a decision. The last challenge to a flight time limitations which was by initiated by ATA, took 18 months and was unsuccessful.


IPA Response: This is true, but litigation at least presents an opportunity to reverse the carve-out in the foreseeable future, while not making the attempt would assure that the carve-out remains in place.

We recommend two courses of action that we believe will more likely produce a desired result without the downsides outlined above. These are legislative and voluntary compliance.

IPA Response: We agree that aggressive action to promote corrective legislation and voluntary compliance are needed. Litigation, however, provides another avenue to improve the duty and rest rules for cargo pilots, while providing important additional leverage that may help on the legislative and negotiating fronts.

Legislative campaign is underway. This has been successful in the past with GPW9 TCAS, and FFDO's.

IPA Response: We agree. As a leader on the TCAS and FFDO issues, we have experienced past successes in working with Congress to correct misguided agency rulings.

DOT is working to get cargo carriers to voluntarily comply.

IPA Response: We agree, and are in contact with Secretary LaHood in support of his efforts to win cargo carrier voluntary compliance.

IPA Summary:

The fight to apply meaningful, science-based duty and rest rules to all airline operations, passenger and cargo, has been uphill from the very beginning. We are in an environment that is generally hostile to regulations in any form. However, having won the very important step of a FAA published final rule, the Agency bowed to the powerful air cargo lobby and exempted cargo operators from new, science-based minimum duty and rest standards.

The segment of the industry most in need of the rules and most capable of absorbing any costs associated with them, used their financial and political might to force through a last minute exemption. Professional pilots have rallied around the slogan “one level of safety” for over a decade. Now, the push is on to see if we really mean it.

We have an integrated air traffic system in this country. Cargo and passenger pilots share the same runways, fly the same congested skies. It should be unacceptable to all pilots, passenger and cargo, that one group be excluded from rules over four decades in the making.

Yep, the IPA is doing the heavy lifting again...

Thank You IPA
Glad there is one union out there looking out for the cargo pilots

ALPA is a joke and a better part of the reason why the airline industry is in the toilet.

That is an understatement,,,

However,

It would have been better if the IPA could produce a bid packet for every fleet that would be constructed with the new rules. Then have a vote on whether or not millions of IPA dollars and all the time should be spent on this....

Commuters may not want what they ask for..........

I spoke to many pilots about this and they agree,,,but not being a 88 to 94 hire date your opinions are lightly taken.

Reminds me of how we complain the company would never listen to an hourly employee but we have the same situation in the IPA with regard to hire date and if you are in certain "circles."

I will say it again, "lets look at a bid packet for all fleets under the new rules." before we screw commuters.....last time i checked the majority of UPS pilots commute.....

ALPA is and always has been a bunch of backstabbers and cowards. They just showed the fedex pilots what all that money they have been paying, for protection and representation gets them. NOTHING as long as alpa represents you, get used to it.

and now for some contrasting humor... here is the garbage ALPA sent me today to make me feel better about being a 2nd class Cargo citizen...

I hear what you are saying, but what a mixed message that would send ...

Think of it in these terms:

Union Message ... We want to be included in these new regulations that are designed to reduced fatigue levels and increase overall safety ... as long as we can keep our existing commutable schedules.

Cargo managements, UPS in particular, could spin that against us in more ways than I can imagine.

That is exactly what this is, humor. If this letter doesn't enrage the ALPA membership at FedEx and make them want to seek new representation than I am not sure what will. Oh I forgot, they are too busy dealing with internal strife, recalls and just utter buffoonery.

I agree 100%

Well the Union is the entire IPA, am I not correct? Is the IPA just the EB?

And if the entire IPA was shown what the new rules would look like WRT a bid packet and allowed to vote on the issue of spending tons of money and time on it then maybe our message would be we want the cutout....

I don't know myself, but it sure would be nice to see what the new rules would do and to have a say so in such a major effort....

But I am just a a junior puke who the elected officials would tell to just sit down and color.......

ALPA = one very expensive magazine subscription.

Week on week off would look like starting your trip on Wed. or thursday with a weekend layover, then finishing on Wed. or Thurs. This from someone in manpower planning. I too would like to see the IPA put out some scheds. that reflect the new rules. I don't like being treated any differently than the pax guys, but I would like to know how this is going to affect our schedules.

I resent that remark. I get a calendar too! :eek: .... and a really cool lanyard.

The IPA will do the heavy lifting on this and the heavy lifting on the next contract cycle as ALPA kicks the contract can down the road.
ALPA decades ago was a great union now its turned itself into a four letter word. Its sad to see how they have fallen.:(

I'm proud to be IPA!

Make no mistake...if FDX ALPA went up against UPS, they would be lucky to make non-sched wages and have any work rules whatsoever. They would get slaughtered.

Fred GRANTS FDX ALPA an existence, IMO because he's smart enough to know that a fragmented ALPA and a pilot group deep down knowing how weak ALPA is is good for business.

If ALPA ever does get around to negotiating a contract they'll perhaps be lucky to get UPS+$1, or get another 'With or without you" letter in the mail and fold like a house of cards.

My bet is FDX ALPA flounders and takes UPS+$1...why do all that work when somebody else can do it for you...the new American way apparently.

Occupy Aviation! :rolleyes:

You guys are my heroes.:rolleyes:

Brown pilots hate UPS, love the IPA, and are mad as hell.

Purple pilots love Fred, are oblivious to ALPA, and are disinterested.

My Dad is better than your Dad.

Mine is bigger than yours........

Come on find something else to complain about.

Tell you what, You worry about IPA and we will worry about FDX ALPA.

That's rich coming from the Delta-types of the new millennium. :rolleyes:

Tell you what...don't do a house of cards collapse when Fred sends out another bluff letter and lower the bar for us this time...keep extending if you please. We'll do the heavy lifting...again.

Everything you have is a gift from Fred...simple fact.

I don't belong to ALPA because I think we have more political pull than the various industry groups. In fact, I shudder to think of the difference between what the ALPA-PAC spends versus what mgt spends. As to FDX, I'd venture a guess that Fred lobbying in the seats at FedEx Field is more effective than the donations FDX pilots give to the PAC.

I belong to ALPA for access to the medical department, for another set of eyes tracking my pension. AND, most importantly, for legal defense. IF the company fires me because I elected to wear a Christmas tie outside of the "permitted" periods, then I know I don't have to pony up the bucks for representation fighting to get my job back.

ALPA is not EF Hutton. ALPA-PAC does have a seat at the table a bit closer than IPA...but, just because something makes sense or is logical doesn't mean Congress is going to listen to it. In fact, sometimes I get the impression that being logical hinders rather than helps when dealing with the Govt.

Tell you what, how about you guys figure out your internal issues first and figure out who you want on your MEC before you come pointing fingers at the IPA.

Pointing fingers? Really? Reread this thread, Sport. The only finger pointing going on here is at FDX ALPA, and it's been with your middle finger. :confused::mad:

Hello Pot, this is Kettle. Seems to me from the posts I read your house hasn't been the living in wedded bliss either.

Remind me again why the UPS and FedEx guys are going at each other.

Cause our union is working on making things better while your continues to pass the buck. From reading your threads seems like you guys need to clean your own house before your ready to join any fight.

You are really winning friends and influencing people there Shaggy.

I noticed that you did not quote the part of my post that address the fact that your house isn't so clean either.

Just got this in my inbox from a friend over at Big Brown. Was posted recently on their internal bulletin board.

Guys,

I have been made aware of some frustrations being exchanged between supposed IPA and FedEx ALPA pilots over on the public APC Forum. I encourage all IPA members to refrain from establishing any ill will between our two Associations, especially when our collective efforts are needed in addressing the issues facing us all.

The IPA and our colleagues at FedEx ALPA have established a cooperative working relationship over the past year. We (the pilots of UPS and FedEx) share many of the same concerns that currently face our industry in general and cargo in particular. The new Flight Time/Duty Time rule and the subsequent carve-out of cargo airlines from that rule should trouble us all. Pilot Fatigue does not discriminate. Whether boxes or passengers are carried behind us, the dangerous effect of fatigue poses an equal threat to aviation safety.

ALPA is choosing to pursue a legislative track in attacking the problem. The IPA has elected to fight the battle both legislatively and legally. We jointly seek the same objective. FedEx MEC Chairman Scott Stratton and I have recently discussed joining our efforts during recent meetings together in Washington D.C. Those discussions continue and the IPA welcomes opportunities to work jointly together with FedEx ALPA and our friends at CAPA in achieving a successful outcome to this misguided and inequitable application of the new safety rule to our industry. We are a stronger voice together than individually.

It is easy to let the distractions of these challenging issues morph into internal strife among our groups. Let’s resist turning inward on one another out of frustration over what is surely another uphill battle for cargo pilots. As I have mentioned before, turning back yet another attempt (remember TCAS in the 1990’s) at a cargo carve-out may seem like a David vs. Goliath endeavor against the significant lobbying power of the cargo industry. But together, we (the IPA, CAPA and FedEx ALPA) are on the side of angels on this issue which in turn serves to remind us that that in the end, David did slay the giant !

Remain United,

Bob Travis
IPA President

Exactly what in the "actual" new rules would drive this change in your schedules?

(There was a lot of talk "before" the "actual" new rules came out, which suggested commuting could become more limited/difficult, but I don't believe any of those limitations (i.e. max # of consecutive night hub turns) made it into the final verbiage)

Do your sources in "manpower planning" work for the IPA or management??

Manpower planning is a UPS function. I believe you would be limited to 3 nights or EDW trips in a row. No more Tues. Morning to Sat. morning trips per the new rules. Like I said before, I would like the IPA to put out some sample trips that reflect the new rules. They are doing a great job telling me how we are still overstaffed and how many more vacation weeks will be avail., now let me see how the lines will look if we are included in the new rest rules. That's all!:)

I'm unfamiliar with your "EDW" trips, but if you are talking only 3 "hub turns" in a row, I believe that restriction was originally in the "proposed" rules, but did NOT make the final version.

Other's in the know please chime in....and I will look to double-check the new rules.

I do agree; however, that your IPA should answer these type of simple scheduling question immediately.

The "rule" is in there - sorta.

If you can get a minimum of 2 hours rest between hub turns you are not restricted to only 3 in a row.

Hey UPSFO4LIFE,

If you fly domestic sort trips, do many of our trips NOT have at least 2 hours on the ground during the sort ?

Not being a wise guy, just an unfamiliar international type who really doesn't know ... ;)

2 hours on the ground does not equal 2 hours rest though.

Understood, but how is it written in the regs, that's the question ?

Whats the difference?

"So let it be written...So let it be done.."

That is a pretty good representation on how the white house sees Federal Regulators. :eek:

Think there was a burning bush in the oval office when they got their marching orders? :D

Burning bush? They all have good medical insurance with prescription plans that cover that problem. So, I would have to guess, no.


(I couldn't decide which way to go on this...GW or this. But, I didn't want to make it political):D

Please, for the love of God, don't make this thread political, or the powers-what-be will close it down fo' sho'. And no religion too.

JJ